[EL] Too Brave for the "Home of the Brave"?

Tue May 1 11:10:24 PDT 2012

The PAC is not the corporation.  Banning the latter because rights are
recognized in the former is insufficient.

On Tue, May 1, 2012 at 2:08 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  Any human being associated with a corporation (who is a U.S. citizen)
> should have the right to spend money on elections.  And if they want to do
> so together to speak as the voice of the corporation, they can amply do so
> with a PAC.  As Justice Souter said in the context of the ban on corporate
> contributions in elections in FEC v. Beaumont, " A ban on direct corporate
> contributions leaves individual members of corporations free to make their
> own contributions, and deprives the public of little or no material
> information. "
>
>
> On 5/1/2012 11:01 AM, Steve Hoersting wrote:
>
> Rick,
>
> Thank you for the reply.
>
> I will think about your point that the ability of an independent speaker
> to choose anonymity can be worse than a system of compelled disclosure for
> all independent electoral speakers, though I don't lean that way.
> Nonetheless, this point still leaves open the question of exemptions... of
> when they are triggered and acceptable.
>
> I don't believe, however, I'll be coming to the position that there is, on
> balance, a benefit in banning corporate electoral speakers to shield them
> from extortion.  Corporations are one of many associational forms; they are
> groups of people.  If they choose not to speak, fine.  But I believe the
> association has rights that cannot be reconciled with a ban.
>
> Banning the rights of the people to protect them from their
> representatives reverses the role of principal and agent.
>
> Best regards,
>
> Steve
>
> On Mon, Apr 30, 2012 at 12:23 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>>  Steve,
>> Sorry for the late response---I've been travelling.  I don't think your
>> post below adds anything to our earlier discussion (that is, I don't think
>> we've done anything since the last time to convince each other to change
>> our own positions).  I've yet to see compelling evidence in current times
>> of economic retaliation by government actors based upon to whom they
>> give/don't give money.
>> But even if we suppose that this happens on a regular enough basis to
>> worry about, I think that non-disclosure of campaign spending makes things
>> WORSE, not better. The government actor could still demand that money be
>> spent in support of a campaign or exact retribution.  But now the public is
>> deprived of relevant information for elections and it is harder to ferret
>> out corrupt deals end enforce other campaign finance laws, such as the ban
>> on foreign money in elections.
>> Even more importantly, the best way to deal with this problem might be to
>> prevent corporations from making such spending so that they could not be
>> extorted in this way.  I understand this is precisely why many large
>> corporations supported the soft money provisions of BCRA.
>> Rick
>>
>>
>> On 4/27/12 9:04 AM, Steve Hoersting wrote:
>>
>>  Dear Rick,
>>
>> When last you and I chatted about disclosure and its exceptions, I closed
>> on this point:
>>
>> But ask yourself, for a later discussion: Can you imagine actions taken
>> with the aid of public disclosure that even "someone important" [and I'm
>> sure you meant J. Scalia] might likely say is too much, even for "the
>> Brave?"
>>
>> Everyone discussing disclosure exemptions, *Doe v. Reed,* Civic Courage
>> and The Brave do so on the premise of managing the problem of
>> citizen-on-citizen retribution.  But they ignore a quickly shifting
>> landscape.  The real question is quickly becoming this: What about the
>> rights of a potential speaker who witnesses or reads of *
>> government-on-citizen* retribution visited on others?  This person wants
>> to participate in the election, but doesn't want to risk being the next one
>> made an example of.
>>
>> An op-ed today, by *WSJ's* Kim Strassel, brings this issue to the fore.
>>
>>
>> http://online.wsj.com/article/SB10001424052702304723304577368280604524916.html?mod=WSJ_Opinion_LEADTop
>>
>> If the regulatory process is soon to be so divorced from congressional
>> budgetary processes and meaningful judicial review -- and I am thinking now
>> of the powers vested in an IPAB or Dodd-Frank's new consumer czar -- the
>> prospect of *post hoc* regulatory decisions, made by winning
>> officeholders who have already demonstrated a willingness to reward friends
>> and frustrate opponents, can intimidate businessmen deciding whether to
>> speak at all in the election.
>>
>> An answer to this drain on popular sovereignty is for business-men and
>> -women to 1) seek the *Socialist Workers* exemption 2) to campaign
>> disclosure of independent communications (not candidate donations) 3) for
>> potential speakers who 4) have observed the actions of abusive officials of
>> any party, want to speak against them in the election, and do not want to
>> be "next."  These business men or women would file as John Does or Jane
>> Does to protect their anonymity while the district court adjudicates their
>> application.  If the request is denied, they would have the choice to
>> proceed or stay silent -- forming a record for appellate review.
>>
>> If no one receives the *Socialist Workers* exemption from a district
>> court, appellate courts will have to consider that fact when revisiting not
>> only *Socialist Workers'* efficacy as a safety valve, but the importance
>> of "the informational interest" itself.  If no lower court will grant the
>> exemption, then, in the new wave of regulatory power sure to come, the *Carolene
>> Products* compromise -- that economic deprivations will not be handled
>> in the courts but rather in robust political processes -- is all but dead.
>>
>> Even after the Judicial Revolution of 1937, and irrespective of who wins
>> in November, regulatory power is only legitimate if it is the result of
>> robust political processes.
>>
>> Now back to Scalia, our discussion, and the Home of the Brave.  Where
>> citizen-on-citizen intimidation is facilitated by disclosure, as in the
>> Prop 8 cases and *Doe v. Reed*, Scalia wants citizens to toughen up and
>> get some "civic courage."  But I believe where *government*-on-citizen
>> intimidation is facilitated by public disclosure Scalia would not look
>> favorably upon this *at all.*  Scalia knows our Founders pledged their
>> lives, fortunes and honor in their 18th century campaign against the King.
>> But these men were already acting outside the political system of their
>> day, not within it.  Their "Courage" cannot be the model Scalia would hold
>> businessmen to while U.S. courts are open.  The reasonable probability of
>> government-on-citizen retribution can be a difference in kind.
>>
>> It is conventional wisdom that Scalia likes what he calls "real"
>> constitutional law -- not just adjudicating rights under the first ten
>> amendments, but deciding questions about relative power distributed among
>> co-equal branches.  Scalia would recognize that, after 1937 and the *
>> Carolene* compromise of 1938, regulatory legitimacy derives almost
>> entirely from robust political processes.  I have to believe he would
>> understand that those asked to speak electorally in an atmosphere of a
>> probable government retribution knowing their is a 50-50 chance their side
>> will lose the coming election are not "Brave" but martyrs or fools.
>>
>> Most importantly, Scalia knows that when robustness is chilled, the *
>> Carolene* compromise itself is called into question.  Not only are
>> speech rights deprived, the electoral crucible that ensures popular
>> sovereignty begins to produce tainted results; and the very structure of
>> government and relative power among the branches risks being altered.
>>
>> This is a theory I will be promulgating when I get the opportunity, in
>> addition to this old op-ed.
>> http://www.nationalreview.com/blogs/print/266623  If anyone else wants
>> to develop it, please be my guest.
>>
>> --
>> Stephen M. Hoersting
>>
>>
>>
>>   _______________________________________________
>> Law-election mailing listLaw-election at department-lists.uci.eduhttp://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000
>> 949.824.3072 - office
>> 949.824.0495 - fax
>> rhasen at law.uci.edu
>> http://law.uci.edu/faculty/page1_r_hasen.html
>> http://electionlawblog.org
>>
>
>
>
> --
> Stephen M. Hoersting
>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
>

-- 
Stephen M. Hoersting
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